Opinion
2:01-CV-0070
September 4, 2003
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
This habeas corpus petition, filed pursuant to 28 U.S.C. § 2254, does not challenge the legality of the conviction and sentence by which petitioner is being held by respondent, but instead, challenges an adjudication of guilt as a result of a prison disciplinary charge and hearing, and the resultant forfeiture of 90 days good time credits. The petitioner, KERMIT CHASE SELLERS, appealed the disciplinary adjudication within the prison grievance process filing both a Step 1 and a Step 2 grievance challenging the result of the disciplinary proceeding. No state court has heard petitioner's challenges, and he presents his constitutional challenges to the federal court directly following the prison adjudication. The Texas Court of Criminal Appeals declared that it would not entertain claims concerning alleged violations of prison disciplinary procedures, even in a case resulting in loss of good time. Ex parte Brager, 704 S.W.2d 46 (Tex.Crim.App. 1986). Two years later, the Court of Criminal Appeals held that, with respect to the refusal to award good time credit based on inmate classification or disciplinary procedures, it will assume the determination made by the Director of the Texas Department of Criminal Justice was made in accordance with her authority as well as in accordance with due process and due course of law. Ex parte Palomo, 759 S.W.2d 671, 674 (Tex.Crim.App. 1988) (op. on reh'g). Notwithstanding the Texas court's refusal to hear forfeiture of good time claims, it is well-settled that forfeiture of good time is cognizable by habeas corpus. Consequently, this case comes to the federal court without any prior state court review and, arguably, the provisions of the AEDPA providing for deference to prior state court adjudications are inapplicable.
I. PROCEEDINGS
Petitioner, KERMIT CHASE SELLERS, was charged in disciplinary case number 20000380739 with possession of contraband, tobacco. Following a disciplinary hearing, he was found guilty of the disciplinary infractions and assessed a punishment which included forfeiture of ninety (90) days accrued good time, forty-five (45) days each of recreation, cell restriction and commissary restriction, and reduction in line-class status from S3 to LI. Petitioner is serving concurrent sentences for one count of burglary of a habitation, one count of burglary of a building, and burglary of a motor vehicle; he is eligible for mandatory release. Since his conviction occurred prior to September 1, 1996, there is no question that he has a liberty interest in his good time credits. Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000)
Following the guilty finding in the disciplinary proceeding, petitioner filed a Step 1 grievance on August 31, 2000, which was denied on October 11, 2000. Then, he re-submitted a Step 1 grievance, and it was again denied on October 19, 2000. Next, petitioner filed a Step 2 grievance on October 30, 2000, which was denied on November 15, 2000.
II. PETITIONER'S ALLEGATIONS
On the form provided to him by prison officials, petitioner raises "six errors" in the portions entitled "ground one" through "ground four" in which he contends:
1. prison officials violated petitioner's equal protection rights because they failed to "follow their own internal rules and policies;"
2. prison officials violated petitioner's equal protection rights because "time-limits were not equally observed for both parties;"
3. prison officials violated petitioner's due process rights because "the DHO, and both levels of appeal authority failed to provide proper judgment summaries;"
4. prison officials violated petitioner's due process rights because they illegally seized his property (good conduct time credits);
5. petitioner's due process rights were violated because "evidence favorable to [him] was witheld (sic) by the State;" and
6. petitioner's due process rights were violated because he "was exposed to double-jeopardy, prohibited by the U.S.C. Amendment V."
III. MERITS
In order to prevail, petitioner must show his due process rights were violated during the disciplinary process. The United States Supreme Court has set out the due process to which a prisoner is entitled during a disciplinary proceeding. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the court held that while disciplinary proceedings are not part of the criminal prosecution process and, therefore, the full panoply of rights does not apply, there are certain minimal due process provisions which are required. Those are: (1) advance written notice of the charges; (2) a written statement by the fact finder of the evidence relied upon and the reasons for the disciplinary action; and (3) an opportunity to call witnesses and/or present documentary evidence when such presentation is not unduly hazardous to institutional safety or correctional goals. Wolff, 418 U.S. at 563-566.In addressing these type of cases, the Fifth Circuit has declared that the findings of the prison disciplinary hearing shall not be disturbed unless they are arbitrary and capricious. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995). Further, the federal courts do not review the sufficiency of the evidence since a finding of guilt requires only the support of some facts, or any evidence at all. Gibbs v. King, 779 F.2d 1040, 1044 (5th Cir. 1986).
Viewing the evidence in the light most favorable to petitioner, evidence at the hearing established that a search of petitioner's cell was conducted on August 23, 2000. Two officers, Officers Blum and Syrvara were instructed to search petitioner's cell. Following the search petitioner was escorted from his cell to the shower area, although it is unclear whether Blum was alone or both officers escorted petitioner to the shower area. In his statement, Blum states "he" escorted petitioner to the shower area, and while going down the stairs, petitioner pulled an item from his boxers. Blum does not say "what" petitioner did with this unknown item. Blum was "not sure of what the item was or what [petitioner] would do," so he did not retrieve it at that time. Blum took petitioner to the shower area, stripped searched him and then told him to have a seat. When Blum returned to the staircase, he found fifteen (15) cigarettes wrapped tightly in a plastic bag attached to a magnet on the hand-rail of the staircase. In response to one of petitioner's questions at the hearing, Officer Syrvara stated that the cigarettes were found at the "bottom of stairs on step." Syrvara gave no formal statement and was asked very few questions by petitioner.
Spelling may be incorrect. Only two (2) portions of the record refer to this officer by name. One, was a hand-written statement given by Officer Blum in which the spelling was hard to decipher, and the other came from the TDCJ worksheet.
The Fifth Circuit has held that the findings in disciplinary hearings "will not be disturbed unless they are arbitrary and capricious." Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995). When the decision of prison officials is to revoke good time credits, the "relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Spaulding v. Collins, 867 F. Supp. 499, 510 (S.D. Tex 1993), citing Superintendent v. Hill, 472 U.S. 445, 455 105 S.Ct. 2678, 86 L.Ed.2d 356 (1985). So long as there is "any evidence at all" to support the disciplinary hearing officer's findings, the result of the hearing will be upheld. Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981), cert. denied, 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853 (1982).
Officer D. Blum filled out an "Offense Report" in which he states he saw petitioner take something from his boxers and place it on the stairs. Blum further states that when he went to retrieve the "unknown item" he discovered it to be a tightly wrapped plastic bag containing 15 cigarettes. The Court finds that there was "some evidence" to support the disciplinary hearing officer's decision.
IV. CONCLUSION
Based upon the foregoing, it is the opinion and finding of the undersigned United States Magistrate Judge that the petition for writ of habeas corpus filed by KERMIT CHASE SELLERS is without merit and should be, in all things, DENIED.
V. INSTRUCTIONS TO THE CLERK AND TO THE PARTIES
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner, by certified mail, return receipt requested, and to counsel for respondent by regular U.S. mail.
Any party may object to these proposed findings, conclusions, and recommendation within fourteen (14) days after its date of filing. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b); 6(e). Any such objections shall be made in a written document entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.